[Dr. Ashok Dhamija]

It depends upon the terms and conditions of your employment that you and your employer company agree. If you are not agreeable to depositing the original educational certificates and executing a bond of two years in favour of the company, then you may refuse to do so, and may be join some other company. There is no such legal provision and it all depends upon mutual agreement between the parties.

Sometimes, a company may insist on these conditions to ensure that an employee does not leave the job abruptly, more so when they invest in training the employee during the initial period in some highly professional / technical work. But, nobody can force you to agree to such terms and you can refuse to join such company if you have reservations on these issues.

However, if you deposit these original certificates, then take proper receipt / acknowledgement from the company.

Moreover, if you agree to these terms of the company and abruptly leave the job within two years, then you may be subject to penal provisions of the bond. Normally, if you fulfil the conditions of the bond and pay the penalty, your educational certificates should be returned to you.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Section 436 of the Criminal Procedure Code provides that when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail.

In fact, Section 436 even permits release of a person on his personal bond without sureties where such person is unable to furnish sureties due to poverty or otherwise if the police officer or the court thinks fit.

Thus, bail is a matter of right in bailable offences.

So, generally, the police would itself grant bail in bailable offences. But, sometimes, the police may produce the person concerned before the court, whereupon the court would grant the bail in such bailable offence.

Also, please remember that the power of police to keep a person in custody is only for a maximum period of 24 hours; after that, the custody can be authorised / extended only by the court. Therefore, in the worst scenario, if the police is not releasing the person on bail in a bailable offence, it will have to produce such person before the court within a maximum period of 24 hours, whereupon the court would grant bail to him. This is not to condone the act of the police of not granting bail in such offence; but, sometimes, under one or other excuse, police may deliberately delay the release. In such cases, the bail would be granted by the court within 24 hours of the arrest if it is a bailable offence.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Article 32 of the Constitution guarantees a fundamental right itself, under which a person can directly approach the Supreme Court for enforcement of his fundamental rights, without first approaching other courts.

However, in practice, nowadays, the Supreme Court generally does not entertain such individual matters under Article 32 of the Constitution directly, even if fundamental right of a person has been violated. The Supreme Court will advise the person to first approach the high court under Article 226 or other appropriate court or tribunal under relevant legal provisions, before directly approaching it under Article 32. It is only in very rare cases that the Supreme Court would entertain a writ petition under Article 32 (generally, in public interest litigation or some other important cases).

In view of this, if you want to file a petition to get the FIR quashed (if you have valid grounds for the same), you may file a petition under Section 482 of the Criminal Procedure Code before the high court concerned.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

As per the decision of a 5-judge Constitution bench of the Supreme Court in the case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 : AIR 2014 SC 187 : 2014 Cri LJ 470, it is mandatory for the police to register FIR if the complaint given to it discloses the commission of a cognizable offence. It was also held that, however, if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. For more details on this issue, read: When can preliminary enquiry be conducted before FIR registration by police?

Also see: Whether Lalita Kumari case is final or any further judgment case later?

In case the complaint given by you clearly shows the commission of a cognizable offence (in your case, an offence under Section 354 IPC, which is a cognizable offence), it is the duty of the police to register FIR and investigate the case.

If the police does not register FIR even if such complaint discloses commission of a cognizable offence, you may consider the following remedies:

(1) Approach the Superintendent of Police of the district (or the DCP of the city area) for getting the FIR registered, under Section 154(3) of the Criminal Procedure Code.

(2) File an application before the Magistrate seeking direction to the police under Section 156(3) of the Cr.P.C. for conducting investigation in the case.

(3) File a private complaint before the Magistrate under Section 190 / 200 of Cr.P.C.

(4) File a contempt petition against the concerned police officer for failing to comply with the direction given by the Supreme Court in the above Lalita Kumari case, for mandatory registration of the FIR.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Evidence is basically of two types – (1) Oral evidence (i.e., of the witnesses), and (2) Documentary evidence.

A criminal case can be proved by either type of evidence or a combination of the two. Some cases can be proved only on the basis of the documentary evidence itself, in the absence of oral evidence.

Therefore, it should be clear that it is not necessary to always have independent witnesses (who would generally give oral evidence) to prove a case, since in some cases oral evidence may not even be available and the case may be proved in the absence of such witnesses.

There are several cases which are proved on the basis of circumstantial evidence also, even though there may not be direct evidence in the form of oral evidence or documentary evidence.

There are cases (such as, for example, an offence of rape) where conviction may be possible on the basis mainly of the evidence of the victim only. Even in corruption cases, there have been cases where conviction has been possible mainly on the evidence of the complainant who is generally considered to be an interested witness, provided his evidence is found to be trustworthy and reliable and, more so, if there is some corroboration to his evidence.

Therefore, it all depends upon the facts and circumstances of each case. Conviction in a criminal case may be possible even in the absence of independent witnesses, provided the evidence otherwise available is found to be reliable and trustworthy.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

A writ petition can be filed directly either in the Supreme Court (under Article 32 of the Constitution) or in the high court (under Article 226 of the Constitution).

In the Supreme Court, the writ petition can be filed only for the enforcement of the fundamental rights guaranteed in the Constitution and for no other rights.

However, in the high court, the writ petition can be filed not only for the enforcement of the fundamental rights guaranteed under the Constitution, but also for any other purpose.

Wherever applicable, a writ petition can be filed directly in the high court, without there being any need to first approach the lower court.

Depending on the type of your right affected and the organisation where you are working (for service related issues), you may have to approach the civil court, or the service tribunal (such as Central Administrative Tribunal) or the high court. Please ascertain from your lawyer where your remedy lies (it appears that your lawyer has already advised you to approach the high court by filing a writ petition).

As regards court fees to be paid, the writ petition may in fact be cheaper than approaching the civil court. As regards fees to be paid to your lawyer, of course, that is a matter between the two of you. So, the writ petition may not generally be costlier than approaching the lower court. But, it depends.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

If the status of a case (such as a Special Leave Petition or SLP) pending in Supreme Court under “Listing Details” shows “There are No Further Orders of Listing”, this basically implies that no specific further date of hearing has yet been notified. This means that the case will be listed on a future date, but the next date is yet to be fixed. This does not mean that the case has been disposed of or dismissed. In fact, when the Listing Details show “There are No Further Orders of Listing”, then the status of the case would be shown as “Pending”. This would clearly show that the case is still pending, and not disposed of.

If a particular case has already been disposed of, the status of that case would clearly show as the case having been disposed of.

So, you should not worry and contact your advocate on record to know the next date of hearing as and when the next date is notified.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Family pension is taxed under Section 56(1) of the Income Tax Act. This section provides that “Income of every kind which is not to be excluded from the total income under this Act shall be chargeable to income tax under the head “Income from other sources”, if it is not chargeable to income tax under any of the heads specified in Section 14, Items A to E”. Now, since “family pension” is not included in any of these heads specified in Section 14, Items A to E, therefore, “family pension” is taxed under Section 56 as “Income from Other Sources”.

In view of the provisions of Section 57(iia) of the Income Tax Act, in respect of income due to “family pension”, a deduction of a sum equal to thirty-three and one-third per cent of such income (i.e., one-third of such income) or Rs. 15000, whichever is less, is allowed from such income.

See some more replies related to family pension:

• Is Income Tax payable on Family Pension received by a widow
• Family pension to unmarried daughter of more than 25 years age
• Family pension of a defence officer
• Is TDS for income tax deducted on family pension?

 

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

The offence under Section 279 IPC (Rash driving or riding on a public way) is non-compoundable.

The offence under Section 337 IPC (Causing hurt by act endangering life or personal safety of others) is compoundable with the permission of the court before which the prosecution is pending.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Maximum punishment for the offence of cheating under Section 420 IPC is imprisonment up to 7 years and also fine.

However, generally the punishment that is actually awarded for an offence under Section 420 IPC is much less than this maximum limit. Usually, imprisonment ranging from one year to three years is awarded as the punishment for this offence.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

But, yes, it is legally possible to frame charge under a single conspiracy for several offences taking place over a period of two years, or for that matter, even for a longer duration, if the facts of the case support such single conspiracy.

In fact, in a similar situation, in the case of S. Swamirathnam v. State of Madras, 1957 Cri LJ 422 : AIR 1957 SC 340, the Supreme Court has held as under:

“The charge, as framed, discloses one single conspiracy, although spread over several years. There was only one object of the conspiracy and that was to cheat members of the public. The fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not change the conspiracy and did not split up a single conspiracy into several conspiracies. … the instances of cheating were in pursuance of the conspiracy and were therefore parts of the same transaction.”

 

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

In this regard, let me point out that in the case of High Court of M.P. v. Satya Narayan Jhavar, (2001) 7 SCC 161, a 3-judge bench of the Supreme Court has held as under:

“ The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.”

In view of what has been laid down by the Supreme Court, it would depend upon the facts and circumstances of the case concerned and the rules applicable to the person concerned.

In your question, you have not specified as to what exactly are your rules. Depending upon what your rules lay down, it will fit in one of the three scenarios pointed out by the Supreme Court in the above case. Whether probation period can be deemed to have been automatically confirmed will depend accordingly. So, in the absence of full facts, your question cannot be answered correctly. You can yourself apply the above Supreme Court judgment to your fact situation or provide further relevant facts to get correct answer.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

In the case of Hakam Singh v. Gammon (India) Ltd., (1971) 1 SCC 286, the Supreme Court has held that:

“It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such Courts is not contrary to public policy. Such an agreement does not contravene Section 28 of the Contract Act.”

In the case of A.B.C. Laminart (P) Ltd. v. A.P. Agencies, (1989) 2 SCC 163 : AIR 1989 SC 1239, the Supreme Court observed as under:

“When the court has to decide the question of jurisdiction pursuant to an ouster clause it is necessary to construe the ousting expression or clause properly. Often the stipulation is that the contract shall be deemed to have been made at a particular place. This would provide the connecting factor for jurisdiction to the courts of that place in the matter of any dispute on or arising out of that contract. It would not, however, ipso facto take away jurisdiction of other courts. …”

“…where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like “alone”, “only”, “exclusive” and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim “expressio unius est exclusio alterius” — expression of one is the exclusion of another — may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed.”

In the case of Shriram City Union Finance Corpn. Ltd. v. Rama Mishra, (2002) 9 SCC 613 : AIR 2002 SC 2402, the Supreme Court has held as under:

“…there is difference between inherent lack of jurisdiction of any court on account of some statute and the other where parties through agreement bind themselves to have their dispute decided by any one of the courts having jurisdiction. … A party is bound either by provision of the Constitution, statutory provisions or any rule or under terms of any contract which is not against the public policy. It is open for a party for his convenience to fix the jurisdiction of any competent court to have their dispute adjudicated by that court alone. In other words, if one or more courts have the jurisdiction to try any suit, it is open for the parties to choose any one of the two competent courts to decide their disputes. In case parties under their own agreement expressly agree that their dispute shall be tried by only one of them then the parties can only file the suit in that court alone to which they have so agreed. In the present case, as we have said, through clause 34 of the agreement, the parties have bound themselves that in any matter arising between them under the said contract, it is the courts in Calcutta alone which will have jurisdiction. Once parties bound themselves as such it is not open for them to choose a different jurisdiction as in the present case by filing the suit at Bhubaneshwar. Such a suit would be in violation of the said agreement.”

In your case, from the facts stated in the question, Ludhiana is one of the places which has territorial jurisdiction for any dispute between the two parties. And, as per your agreement, it is specifically mentioned that “All disputes shall be resolved subject to jurisdiction of Ludhiana courts only”. In view of this, a civil suit in such a dispute can be filed only in Ludhiana and not in Delhi, as held in the above Supreme Court judgments. Therefore, you can oppose the civil suit filed by the opposite party in Delhi on the ground that this suit cannot be filed in Delhi but can be filed only in Ludhiana as per the specific agreement.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Since both of you, i.e., both wife and husband, are willing for divorce, the best way possible is to apply for mutual consent divorce under Section 13-B of the Hindu Marriage Act, 1955. This is the fastest way to get divorce.

As regards the custody of the minor son, the best possible way should be for both of you to mutually agree on the issue of his custody. In the absence of a mutual agreement, the custody issue will be decided by the court. While granting custody of a minor, the welfare of the minor is the foremost consideration which the court keeps in mind. The fact that the minor son is staying with you for several years (as per your question, you are staying separately from your husband for 7 years and apparently the son is staying with you for these years) is likely to go in your favour when the question of custody is decided. The mere fact that your husband is paying for the maintenance of your son will not be the conclusive fact to decide custody of the minor son in your husband’s favour. The overall welfare of the minor son will be the main consideration for this decision.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

One of the main requirements of Section 125 of the Cr.P.C. for grant of maintenance to wife is that she is unable to maintain herself.

Further, Section 127 of the Cr.P.C. provides for alternation in maintenance allowance, on proof of a change in the circumstances of any person, receiving, under Section 125 a monthly allowance for the maintenance. This section also allows the Magistrate to cancel the maintenance order in appropriate circumstances

In view of these, you can file an application before the court under Section 127 Cr.P.C. for alteration or cancellation of the maintenance to your wife, giving the reason of her fresh employment. The court will decide the case on merits.

To reply to the second part of your question, as per Section 6 of the Hindu Minority and Guardianship Act, 1956, father is the first natural guardian of minor son and unmarried daughter. You can file an application under the Guardians and Wards Act, 1890, for being appointed guardian and for seeking custody of your minor daughter. It will be decided by the court on merits by taking into consideration all aspects, including welfare of the minor daughter.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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